MICHAEL J.

BROYDE

Cloning and the

Noahide Legal Code

T he Noahide code was intended to be a practical legal code, and to

form a system that satisfied the social, legal and religious needs of
peoples outside the framework of Judaism.1 Jewish law is not the ideal
legal code for all—only for Jews. This point is frequently overlooked in
discussions of bioethics and Jewish law. Some Jewish legal doctrines
concerning bioethics—as well as other areas of Halakhah—might be
relevant only to Jews. Consider, for example, the remarks of Rabbi
Judah Loewe of Prague (Maharal) concerning the halakhic prohibition
of crossbreeding in animals. He states:
The creativity of people is greater than nature. When God created in the
six days of creation the laws of nature, the simple and complex, and fin-
ished creating the world, there remained additional power to create
anew, just as people can create new animal species through inter-species
breeding. . . . People bring to fruition things that are not found in nature;
nonetheless, since these are activities that occur through nature, it is as if
it entered the world to be created. . . . There are those who are aghast at
the interbreeding of two species. Certainly, this is contrary to Jewish law
which God gave the Jews, which prohibits inter-species mixing. None-
theless, Adam (the First Person) did this. Indeed, the world was created
with many species that are prohibited to be eaten. Inter-species breeding
was not prohibited because of prohibited sexuality or immorality. . . .
Rather it is because Jews should not combine the various species togeth-
er, as this is the way of Jewish law. As we already noted, the ways of the

MICHAEL J. BROYDE is Associate Professor of Law at Emory University and rabbi

of the Young Israel of Toco Hills in Atlanta, Georgia. He has published widely on
topics in Jewish law.
207 The Torah u-Madda Journal (9/2000)
208 The Torah u-Madda Journal

Jewish law, and the [permissive] ways of the world are distinct. . . . Just as
the donkey has within it to be created . . . but was left to people to create
it [and was not created by God]. Even those forms of creativity which
Jewish law prohibits for Jews, are not by definition bad. Some are simply
prohibited to Jews.2
What flows most clearly from this passage is that there is nothing
intrinsically wrong with crossbreeding, even though it violates Jewish
law; indeed, Rabbi Loewe nearly states that such conduct by Gentiles is
good. It was prohibited by Jewish law because it was not part of the
Divine mission for the Jewish people. Jewish law is not a general ethical
category governing the conduct of all. Its scope and application is limit-
ed to Jews, not merely jurisdictionally, but even theologically. This point
of view would seem apparent from the general attitude that the Jewish
tradition takes to a number of issues pertaining to proselytizing.
The same may be said to be true of cloning: even if one were to flesh
out a valid Jewish law doctrine that prohibited cloning, such a doctrine
would not affect the propriety of 99.999% of the world from engaging
in cloning, as such a doctrine would not have, for sure, any foundation
in the Noahide code; and, as Rabbi Loewe notes, many things prohibit-
ed through Jewish law to Jews are perfectly acceptable to Gentiles.
I do not feel, however, that Jewish law itself prohibits cloning to
Jews. I have addressed the general issues related to cloning at some
length in three different articles.3 I suggest that three separate and dis-
tinct areas of analysis are needed to understand cloning: (1) Is cloning
an intrinsically good, bad or neutral activity? (2) Is the clone human,
and who are his or her relatives? (3) Will cloning lead down the slippery
slope towards other ethical violations, and if so, what are they? I shall
propose some tentative responses to these issues.
The first issue—is cloning an intrinsically good, bad or neutral activi-
ty?—would seem to be part of the general debate about assisted reproduc-
tive technology. There are a host of such activities that manipulate the
normal reproductive process. They vary from simple artificial insemina-
tion of the husband’s sperm (which was done 2,000 years ago) to surro-
gate motherhood and its close cousins zygote intrafallopian transfer
(ZIFT) and gamete intrafallopian transfer (GIFT). While some religious
and ethical traditions, most notably Roman Catholicism, view all tamper-
ing with nature in the reproductive area as wrong, that is by no means
true of most religious or ethical traditions, and is not true of Judaism in
particular. Many traditions view all assisted reproductive technologies,
when modestly performed in cases of infertility, as a proper way for peo-
 Michael J. Broyde 209

ple to seek to “be fruitful and multiply,” and to enjoy parenthood, all of
which are good acts. Indeed, one is hard-pressed to find a religiously neu-
tral reason why cloning would be intrinsically bad in cases where other
means of treating infertility would not work. Indeed, consider what is
most likely to be the first use of this new technology, the donation of an
oocyte to a woman who has a mitochondrial disease, where her embryo is
transplanted into a disease-free oocyte, thus eliminating the mitochondri-
al disease from the fetus. Why should that be opposed?
The second issue—is the clone “human” and who are his or her rel-
atives—is the one that attracts the most interest, but in fact has the least
substance to it. Clones would be born from an ovum/egg that was stim-
ulated to divide after its DNA was removed and replaced with another’s
DNA. This egg would then be implanted into a woman’s womb and be
carried to term like any child. This child would have a birth mother, and
would bear no resemblance to the artificial people some are writing
about, who we are afraid would be used for spare parts or slave labor.
Clones would be human—born from a human mother—and entitled to
the same rights as humans to which we all are. Of course, we must all
resist the temptation to label some people as “less human” than others,
since terrible immorality can issue from that posture. However, as this
century has taught us, that danger is not unique to cloning. Just as the
animal named Dolly was a sheep—a cloned sheep, but really just a
sheep—so too cloned humans are humans too, and there is no basis for
thinking they are not.
The question of who would be the clone’s mother/father/sister
brother is a good one. One could view the gestational mother as the
mother, and the gene donor—when he is a man and not a woman—as
the father. One could view the gene donor as the mother, when she is a
woman, and label the gestational mother as of no significance. Indeed, I
suppose one could consider the gene donor a sibling, if one wanted to
stretch a bit. All of these are possible, and at least within the Jewish law
tradition that I am most familiar with, all except the last theory have
their adherents. However, the fact one is not sure exactly what the fami-
ly tree looks like is no reason to stop the process in its tracks. Surrogate
motherhood also has its uncertainties about who is the mother, yet it
serves a valuable role in allowing those unable to reproduce naturally to
have children. Cloning will serve the same function and should not be
prohibited because of this uncertainty.
Finally, some worry about the ethical slippery slope. Cloning, the
argument goes, is not a problem, but it could lead to other problems.
210 The Torah u-Madda Journal

Notwithstanding the Luddite character of this type of reasoning, the

unknown should cause all ethical people to stop, pause and examine
what potential slopes our society—ethically and religiously fragmented
as it is—might slip down. However, once we recognize that clones are
full humans—not organ farms, not slave labor, not automatons—we
also recognize that cloning is no more likely to lead down the ethical
slippery slope than is any other assisted reproductive technology, which
we generally permit to treat infertility. Does that mean full speed ahead?
The answer is that with appropriate supervision, cloning can be proper
and should not be banned.
Indeed, even the most common “nightmare” scenarios advanced by
those hostile to cloning are really quite good. Consider the case of a per-
son dying of leukemia and in need of a bone marrow transplant, with
no donor available. The decision to clone the sick person, so that there
will now be two people (one donor and one recipient of bone marrow)
alive—each, to quote the biblical verse, in God’s image—seems to be
ethically speaking vastly superior to the alternative that existed before
cloning: that one will die and the other will never be born. Indeed,
Jewish tradition might regard this procedure as involving two good
deeds: having a child and saving a life.
In sum, cloning, like artificial insemination and surrogacy, has nar-
cissistic possibilities. In reality, however, it will most frequently be used
as a treatment for drastic infertility, and like all forms of assisted repro-
ductive technologies has its place in one of the central missions of
humanity: to make the world a better place for its inhabitants.

Notes

1. For more on this, see my “Public Policy and Religious Law: Assisting in a
Deliberate Violation of Noahide Law that is Permitted by Secular Law,”
Jewish Law Association Studies VIII: The Jerusalem 1994 Conference Volume
(Atlanta, 1996), 11-20, and my “Jewish Law and the Obligation to Enforce
Secular Law,” in Tikkun Olam: Social Responsibility in Jewish Thought and
Law, ed. David Shatz, Chaim I. Waxman, and Nathan J. Diament (Northvale,
NJ, 1997), 103-43.
2. Judah Loewe of Prague (Maharal), Be’er ha-Golah (Jerusalem 5731), 38-39.
3. “Cloning People: A Jewish View,” Connecticut Law Review 30 (1998): 503-
535; “Cloning People and Jewish Law: A Preliminary Analysis,” Journal of
Halacha and Contemporary Society No. 35 (1997): 27-65; and “The Cloning
Controversy,” Emunah Magazine (Spring 1998): 15-17. Some of the material
in this essay is drawn from those earlier studies.